America's Sex Gulags
from The Guide, August 1997
Is Leroy Hendricks the first of tens of thousands of men to disappear down the legal black hole dug last month by the Supreme Court?
By Bill Andriette
For nearly three years, 62-year-old Leroy Hendricks has gone to sleep each night in his ten-foot-square cell in a locked ward of Larned State Hospital, the state mental institution serving western Kansas. There's a good chance that Larned State is where Hendricks will die.
Why is he there? Leroy Hendricks is perfectly sane. He has a criminal record stretching back to 1955, but completed his most recent sentence with time off for good behavior. In the course of his criminal career, Hendricks never used or threatened violence. Nonetheless, he was designated in 1994 as Kansas's first "Sexually Violent Predator." And on June 24th, the US Supreme Court, ruling five to four, declared that people who have a "mental abnormality" or "personality disorder"– terms as amorphous as a Rorschach inkblot– can be locked up for life in mental hospitals if the state deems them "likely" to commit a crime in the future.
View our poll archive This decision overturns a 1996 judgment by the highest court in Kansas, striking down the state's "sexual predator" law as unconstitutional. The Supreme Court's startling ruling overturns what had been a fundamental tenet of jurisprudence: that people are punished for crimes the state proved were committed, not crimes the state contends they might commit in the future.
The Hendricks decision reflects America's current obsession with crime, an obsession that has given the US more prisoners– over 1.6 million at last count– than any democracy in history. But in crossing this new threshold– the indefinite incarceration of people who might commit crime– the driving force was sexual panic. With homosexuality winning virtual acceptance in the mainstream and sexual imagery flooding pop culture, there has come a terrible backlash. Its force is breaking the backbone of principles basic to American society– ideals of fairness and freedom that the civil rights movements of the 60s and 70s had begun to realize.
Kansas's 1994 "sexual predator" statute was basically a copy of a law that Washington enacted in 1990, and that four other states– Arizona, California, Minnesota, and Wisconsin– have also mimicked. The Washington law was enacted after a number of unusually violent, well-publicized sex crimes in the state, committed by men who had served time previously for other crimes of the flesh. The new law allowed Washington to screen sex offenders coming out of prison in order to root out those the state deemed likely to strike again. Instead of going free, they would be committed indefinitely to a locked facility where they would supposedly receive intensive therapy. If they made progress, eventually they might get out.
The purpose of these laws, proponents say when pressed, is not punitive. That's what Kansas Attorney General Carla Stovall insisted when she argued her case before the Supreme Court last December. Kansas's sex predator statute, she contended, was a balanced attempt to impose therapy on a carefully screened group of violent, disturbed, and recalcitrant offenders. And intensive, mandatory therapy, she maintained, could cure their condition.
But if these civil commitment laws were popular with the woman on the street, they proved enormously controversial in other quarters. The Washington law was upheld by the state's highest court, but then struck down in 1995 by a federal judge. (That case is now on appeal to the Ninth Circuit, though the Hendricks decision could make the issue moot.) Controversy about these laws raged also among those in the mental health world.
"This is not an attempt to gain treatment or anything close to that," contends Howard Zonana, professor of psychiatry at Yale and point person on sex crime law for the American Psychiatric Association (APA). "What this really is, is an attempt to extend prison sentences."
The APA strongly opposes the Washington state law and its imitations because of how it transforms the rules for involuntary hospitalization. "We have an awesome power to commit someone against their will if we think they are ill and dangerous," Zonana says. But he adds that psychiatrists invoke this power only in extremely narrow circumstances: in cases where people have obvious, severe mental conditions– like schizophrenia or psychosis– that break the link with reality, or that make them an immediate danger to themselves or others. Psychiatry's awesome power to lock a person up is generally seen as legitimate because of its limited, clear scope.
But besides severe illnesses, psychiatry also concerns itself with a vast gray area of mental traits and conditions– ranging from nicotine addiction to sadomasochism to "borderline personality disorder"– that do not affect a person's basic rationality or orientation to reality. These have never in themselves been considered mental illnesses or grounds for involuntary commitment.
The Supreme Court explicitly endorsed this distinction in 1992, when it ruled in Foucha v. Louisiana that states could not involuntarily commit people who were dangerous unless they also were mentally ill. With any threshold for commitment lower than mental illness– such as "personality disorder"– Justice White observed, you could indefinitely lock into psychiatric wards practically any prisoner. Most people in jail have a personality disorder, he said. And every prisoner, by virtue of having committed crimes, could be seen as dangerous. Any standard that broad, the court concluded then, has to be wrong.
Zonana suggests that those who advocate the loose standard for involuntary commitment rejected in Foucha aren't really serious. They are simply reaching for a rationale broad enough to allow locking up the people they don't like.
Zonana's analysis seems exactly right. Kansas Attorney General Carla Stovall went before the Supreme Court insisting that the overwhelming aim of the Kansas's treatment program for "sex predators" was therapeutic and non-punitive. But ten months earlier, before the Judiciary Committee of the Kansas State Senate, Stovall called the predator law an ineffectual "game." She was testifying in favor of legislation to stiffen sentences for sex crimes. "This bill gives harsher prison terms rather than pretending we're going to treat them and cure them, which frankly is not going to happen," the Attorney General said. Stovall tells The Guide she has since been "enlightened" about the effectiveness of treatment for sex offenders. Perhaps. Or maybe she thought that if she changed her tune, she could get the Supreme Court to play along with a bid to give states totalitarian new powers.
War is peace & freedom is slavery
Justice Clarence Thomas wove the court's majority opinion in Kansas v. Hendricks from strands of twisted logic he might have pulled from the court's past rationalizations for segregation:
-- Indefinite civil confinement, the court declared, is not punishment.
-- Locking up sane people up in mental hospitals after they've served a prison sentence for a crime is not double jeopardy (two punishments for the same offense)
-- Invoking a law passed years after a person's conviction to confine him when his sentence ends is not ex post facto punishment (a new penalty devised and imposed after an act was committed).
-- Making indefinite confinement contingent on having a "mental abnormality" or "personality disorder"– terms covering everything from caffeine addiction to depression– does not violate the right to due process.
In addition, the Supreme Court said that while a review of a person's confinement needed to occur at least yearly, the review need not be conducted by an impartial court. A special committee set up by the state, accountable to no one, would suffice.
Two trip wires, crossed
In deciding Hendricks, the court set a two-part standard for indefinitely confining people who've broken sex laws. First the state has to show that the person they want to put away is dangerous– which is to say, likely to break the law again. Then it has to show one additional fact about him (and everyone agrees these statutes target only males). That additional fact is something on the order of a "mental abnormality" or "personality defect."
But in practice, the "two-part test" short-circuits. For the price of a professional consultation, guns-for-hire psychologists will diagnose as "pedophile" or "lacking impulse-control" a gay man convicted of blowing a willing 14-year-old. Voilà: a "personality disorder"– or two of them. And it doesn't take much to convince a jury that a convicted "child rapist"– for that is what such a man is called– is dangerous.
These determinations, moreover, are made in proceedings that lack the safeguards that apply in criminal trials. Anyone who's followed O.J. Simpson knows that a line divides the US legal system into criminal and civil sectors. In criminal law, defendants face punishment. Their freedom and lives are at stake, and the Constitution builds in solid protections. Most Americans can rattle off the list: "presumption of innocence," "proof beyond a reasonable doubt," exclusion of illegally obtained evidence, impermissibility of hearsay, the rights to face your accuser and to not incriminate yourself. None of these standards applies in civil law, where what's at stake usually is a fine. When it comes to civil commitment to a mental hospital, the stakes are higher, of course. Nonetheless, a person up for commitment can be forced to testify, and will have all his past charges– proven or otherwise– entered into evidence.
In the broad sweep of its ruling, the Supreme Court granted powers to Kansas for which it hadn't even asked. Kansas has sought to commit only people already in prison for sex offenses. But the court majority averred that the sex predator law could also be used against persons never convicted of a crime. Kansas insisted– fatuously– that the overriding purpose of its commitment law is treatment, not punishment. But Justice Thomas wrote in the majority opinion that states weren't obligated to treat those they confined as dangerous and disordered. Kansas waxed about the favorable treatment prospects for sex offenders. But Justice Kennedy, concurring with Thomas, stated he understood that many offenders, once committed, could never be safely released.
Though the court's majority was thin, the dissenters didn't in fact quibble with the substance of Thomas's opinion. Justice Breyer's dissent homed in on the specific circumstances of Hendricks's case. He noted that while Kansas maintained Hendricks's condition was treatable, the law under which he was committed made no provisions for treatment while he was in prison. And for months after he was confined to Larned State Hospital as a "sex predator," Kansas had no treatment program in place. These facts, Breyer concluded, pointed to illicit punitive intent on Kansas's part. If the minority opinion had actually prevailed, Hendricks would be set free. But the grounds would be too slender to free the other eight men locked in Larned State as "predators."
The implications of the Hendricks decision are huge. For anyone who gets snared in America's motley patchwork of sex laws– including statutes against public sex, indecent exposure, sodomy, sex with family members, lewd and lascivious conduct, age-of-consent laws– the threat of indefinite imprisonment now looms.
With a green light from the Supreme Court, states are now rushing to pass civil commitment statutes for sex offenders, and expand ones already in place. The number of men committed under these new laws nationally (so far there are no women) is already in the hundreds– and this at a time when states were proceeding cautiously from fear courts would strike these laws down. As more civil commitment statutes come on-line, around ten percent of people now in prison on sex charges could be committed, estimates the APA's Howard Zonana, leading to tens of thousands within a few years.
And the underlying rationale of the Supreme Court's ruling extends well beyond sex cases. "Taken to its logical conclusion, any class of criminal we're afraid of can be put into the mental-abnormal or personality-disorder category," says Robert Boruchowitz, a Washington public defender who won a challenge in federal court to that state's commitment law. "And based on their prior record they could be found to be dangerous in the future. Then you could lock them up forever."
Hands that wander
How did Leroy Hendricks become the wedge that opened the door in the US to Soviet-style mental hospitals, filled not with the insane but the despised? What exactly did Hendricks do?
You won't, oddly, find the answer to that question in the media's coverage of the recent ruling. Even when you ask those who pursued his case to the Supreme Court, there will be a long pause or shuffling of papers. Neither Kansas Attorney General Carla Stovall, who presented oral arguments before the nine justices, nor University of Kansas law professor Stephen McAllister, who wrote the state's briefs, nor even Hendricks's court-appointed attorney Thomas Weinert, knows off the top of their heads the precise details of the crimes committed by Kansas's first "Sexually Violent Predator." In the damning glare of that designation, what exactly Hendricks did has sunk below the horizon of significance.
Leroy Hendricks has principally been found guilty of what's known today as "bad touch." One charge on his rap sheet seems almost droll: a 1963 conviction of "lewd conduct" for playing strip poker with a teenage girl. Before that, in 1954, he had his first conviction, for exposing himself to two girls. Then in 1960, he fondled two boys, ages seven and eight, at a carnival where he worked. In 1963 he was convicted of touching the genitals of a seven-year-old girl who was a friend of his family. In 1967, Hendricks was found guilty of fondling a boy and fondling and licking the genitals of a girl– again friends of the family– with whom he had gone camping. Hendricks's last conviction, in 1984, was for touching, through their pants, the crotches of two 13-year-old boys, customers at the electronics store where he worked. In addition, Kansas alleges that Hendricks fondled and had oral sex with his stepson and stepdaughter for a period in the 1970s, in exchange for letting them smoke cigarettes and drive his truck, but there were never any criminal charges.
Hendricks has trouble keeping his hands to himself. But he was never accused or convicted of penetrative sex with minors, nor of using force or threats against anyone.
It's helpful to put Hendricks's indiscretions in perspective. In most societies throughout history, child fondling has been a matter for giggles or mild chastisement. Indeed, in the US during the 50s, 60s, and 70s, minor punishments were what was generally meted out to those found guilty of uncoerced, mildly sexual acts with adolescents or children. During those decades, Hendricks's indiscretions, like those of a habitual public drunk, got him successive slaps on the wrist– well-deserved most would say.
When Hendricks went to court in 1984 to answer charges of touching the two teenage boys, times had begun changing. As a recidivist felon, Hendricks faced life imprisonment. The prosecutor agreed to a plea bargain of five-to-20 years. With time off for good behavior, Hendricks maxed out his sentence at ten, in 1994. That's when the Kansas attorney general made Hendricks the poster boy for the new sex predator law.
At his commitment hearing in October 1994, Hendricks said he wasn't going to molest children anymore, according to Thomas Weinert, his attorney. Hendricks said he had no desire to touch children since 1985. He realized that he had harmed children in the past, Hendricks told the court, and that he had learned his lesson and would not do it again.
But how can you prove you won't do it again, the prosecutor shot back during cross examination.
Well, Hendricks answered, he couldn't prove it. The only way to prove it would be if he were dead.
It was an honest reply to a trick question, but it sealed his fate. "It would be hard to imagine a less sympathetic defendant than... Leroy Hendricks," the New York Times editorialized. "He is a 62-year-old pedophile who has said only death would guarantee a change in his behavior."
The case of Leroy Hendricks shows not the "understandable" desire to keep "violent sexual offenders" locked up, as the New York Times editorial goes on to say. Rather, it proves that even as states proceeded with great caution, walking on tenterhooks from fear of having commitment statutes struck down, they've used these totalitarian tools indefensibly– as they were certain to be used from the beginning.
The story of Leroy Hendricks shows how the spectacle that sex predator laws create obscures the reality of what they do, not least for those who execute them. Are the nine "predators" locked at Larned State Hospital convicted of violent crimes? "I suspect that's one of the criteria," says John Garlinger, spokesperson for the Kansas Department of Social and Rehabilitation Services, which runs the treatment program. "All the ones in there, they're all violent. I mean, the term is 'violent sexual predator.'"
You can get into a Roach Motel...
What are the criteria prosecutors employ in deciding whom to commit as a "predator"? "I think you're being too generous in assuming there are criteria," answers Robert Boruchowitz, the Washington state attorney. "It's totally random." He cites the case of one of his clients. At his commitment hearing after serving his prison term, the state psychologist said he suffered from a "personality defect, not otherwise specified" and a "mental abnormality, not otherwise specified." Either the personality defect or the mental abnormality alone would not make the man dangerous, the psychologist declared, but the two together did. He is now committed as a "predator" to indefinite incarceration.
Kansas's criteria are no less arbitrary. For one Kenneth Hay, counts of "indecent solicitation" of a minor and "lewd and lascivious behavior" were the last charges for which he served time in prison before his indefinite commitment to Larned. For "predators" James Russell and Donald Hunt, their final sentence was simply for "indecent liberties" with minors. As with Hendricks, these charges may have involved touching, and maybe not even that.
But Kansas has been relatively cautious in the numbers of men it has sought to commit. From 1994 through last December, 618 people were released from Kansas prisons after serving time for breaking sex laws, according to Stovall. Only nine have been committed as "predators" (a handful of other cases are pending). Who knows whether that caution will continue now that the Supreme Court has ruled. Whether or not Kansas's offender treatment program is the pointless "game" the attorney general once stated, it is certainly an expensive one. The state says it costs $860,000 a year to run the program at Larned State, more than $100,000 per man.
Clerk makes good
Stephen McAllister was the quill and brains behind Kansas's Supreme Court victory. He is a law professor at the University of Kansas in Lawrence. In 1992 he was a law clerk at the Supreme Court for Justice Clarence Thomas when Foucha was decided (the case where the Court held both mental illness and dangerousness necessary for commitment). McAllister knew that Thomas strongly opposed the majority in that decision. McAllister says that he believes Thomas thinks the state should be able to commit to indefinite incarceration people whom it believes are dangerous. So when the Kansas Supreme Court invoked Foucha to strike down the predator law, McAllister figured the state had an opening with Thomas.
McAllister is delighted with the Hendricks decision. He thinks it gives Kansas the legal means to run a sex predator commitment program in the cautious, reasonable way that he thinks Kansas does it. Will other states be so fair?
"I'm a little bit nervous about that," McAllister acknowledges, "because I think Kansas has been very conscientious, and I'm just not sure that's going to be true everywhere." He grants that the Hendricks ruling allows states extraordinary latitude to lock up sex offenders, because meeting the standards of "dangerousness" and "mental abnormality" is easy for prosecutors. And he thinks the Supreme Court will allow states to do pretty much what they want, since there's little consensus in the mental health world about treatment and future risk. When it comes to committing to mental hospitals people who break sex laws, America has returned to an era of state's rights.
How far from here?
Will the men confined at Larned State ever get out? "We've believed that it would be three to five years of treatment," says Attorney General Carla Stovall. "That's what the experts say their expectation is. Of course we haven't reached even close to that point on any of our predators yet."
As Stovall talks about the men confined at Larned State, the term predator rolls off her tongue with the cadence and weight that Negro once enjoyed in the drawl of Southern sheriffs. The inflection suggests the peculiar brew of contempt and paternalism that's tapped whenever a person's identity grows invested in controlling the lives of others.
"Treatment is only as good as the predators want it to be," Stovall goes on. "The ball is really in the court of the predators to invest in treatment, to do as much as possible to participate and to make those changes that are necessary."
But civil commitment is no panacea, she warns. "The predator law cannot be the only avenue for dealing with sex offenders. I think long sentences are important. I think intensive supervision after release is important, and then sex registration is important. So I think there are lot of pieces to the puzzle."
Anyone who makes it out of Larned will be a publicly registered sexual predator, subject to perpetual electronic monitoring, and tracked wherever he goes. Before hanging up the phone, Stephen McAllister mentions that people in Kansas are talking about the controversial but cutting-edge castration therapies being tried in California. If Leroy Hendricks ever gets out of Larned State Hospital, and one night there is fire on his lawn and a crowd gathered by a tree with a rope, he can't say Kansas didn't warn him. **